Mr. FESSENDEN. That shows it exactly; that is all he can do.

Mr. HOWE. The Senator says that shows it exactly, and that is all he can do. That is all the law charges him with the duty of doing; but I say he could have done several things beside that, and undoubtedly did do, on the very day of election, some having reference to the fairness of the election, and some having no reference to it whatever. I say he could do anything which the law did not prohibit him from doing.

Mr. DAVIS. I will ask my friend a ques tion with his permission. If the law as it stood at the time the election took place authorized one officer to make the return of the election, is it within the competence or withiu the propriety of Congress to pass a subsequent law authorizing another officer to make a return of the election?

Mr. HOWE. Yes, Mr. President.

Mr. DAVIS. After the return has been made by one officer, then there is an appeal to Congress to select another officer to make a different return?

Mr. HOWE. Yes, Mr. President, the law could authorize all the people in the District of Columbia to make a return, and each one could make a perfect return, I take it. I do not see any necessity for doing anything of that sort. The question is, after all, and it is the only question, whether the steps taken in this election are final steps, are adjudications which bind all the people of the District, all the candidates who were voted for, and bind the tribunals of the country. If they were final adjudications, that is the end of litigation. If they were not, then it is perfectly competent for the legislative authority to furnish new trials as long as in its discretion it thinks justice can be promoted by new trials-a new trial by the supreme court of the District, and another one by the Supreme Court of the United States if they see fit to do so.

Mr. President, I have said perhaps more than I had need of doing.

Mr. FESSENDEN. Mr. President, I only wish to comment a little on two points made by the Senator from Wisconsin, leaving the others to take care of themselves. The first is an admission which he makes which covers the whole ground I assumed, and that is, he says this voting by ballot, receiving votes, is only intended to protect the secrecy of the ballot so far as that act is concerned, to use his own language, That I agree to, and that is all I have been contending for. I admit with him that all this matter of balloting can be revised and reviewed by the competent and proper tribunal which is finally to pass upon the fact of election. What I contended for was that the very idea of voting by ballot is founded upon the idea of secrecy; that every man should be at liberty to vote in such a manner as not to have his vote known, if he saw fit to do so. That it may be discovered afterward by any particular judicial course marked out to estab lish the fact whether A or B was elected is no doubt necessary; but so far as the act is con cerned, as the Senator calls it, I contend that he has the right to vote, if he has complied with the other requisites, without having those who receive the vote ascertain how he votes. If they can mark his ballot we may just as well have the open vive voce vote in the Eng. lish fashion. Our fashion is as I have stated it, and for the reason that I have given. founded on the idea of secrecy; that a man's vote should not be open to the supervision of everybody about him, of those who receive his vote even, that he may be perfectly free and independent in the act. That is the idea of it; and the Senator concedes it so far as the act is concerned, he says; and that is as far as I go. Now, sir, as to the Senator's other legal idea, that a ministerial officer may do anything that is not prohibited to him, that is a new legal principle. I had always been educated in the idea that a ministerial officer could do just what the law pointed out to him to do, and nothing more. But the Senator says if certain

It is

duties are given to a ministerial officer he need not confine himself to those duties, but anything else that suggests itself to his discre tion, his idea of what may be right and proper is open to him, if not prohibited by law. Why, sir, that would upset all the rules of judging of the acts of ministerial officers. The honorable Senator is a learned lawyer. He has been upon the bench. Did he ever hear of a certain maxim, Expressio unius est exclusio alterius?"

66

Mr. HOWE. I can translate that.

Mr. FESSENDEN. I know the Senator can translate that. I supposed it was a well known maxim, and particularly applicable to ministerial officers, that if certain duties defined by law are devolved upon a certain set of men those duties they can perform, and none others, in relation to that act, legally. They cannot go beyond them.

Now, what does the seventh section of the law passed only last year, read by the honorable Senator from Iowa, say? Simply this: that these commissioners of election may receive the votes of all those persons whose names are borne upon the check lists, as they are called or whatever they are called, and that they may examine them so far as to ascertain the identity of the individual, and that he has a right to vote; and there it stops. Mr. HOWE. Will the Senator allow me to ask him one question?

Mr. FESSENDEN. Certainly.

Mr. HOWE. Suppose the question is whether these commissioners of election could do any thing which the law did not instruct them to do in reference to this election. Suppose it to be an established fact that they did open the ballot, the ballot which Brown put in, and see that he voted for Bowen, and afterward come on the stand and swore to it, what is the court going to say about it? Are they going to receive their evidence, or not? And if the court receives that evidence, what is going to be done with the commissioners ?

Mr. FESSENDEN. There is no doubt about that. That is a question I am not discussing, what is to be done with the commissioner. A great many things may be done which are wrong. I am discussing the propriety of the thing, and the Senator is maintaining the propriety of the thing, that they had the right to do it, and it was all proper, or else his argument amounts to nothing.

Mr. BUCKALEW. If the Senator will per. mit me, I will state that in Pennsylvania the offense is indictable, and there are a great many penalties for not merely peeping into the ballot, but for meddling with it in any way. We understand that those laws are simply a sanction to the general principle of the secrecy of the ballot.

Mr. HOWE. I simply want to say to the Senator from Pennsylvania what the Senator from Maine said to the Senator from Oregon, we are not trying this question on the laws of Pennsylvania.

Mr. FESSENDEN. Still, they illustrate the idea of the sanctity of the ballot, so far as the receiving officers are concerned; and that is all I was talking about. I should not have said so much if the Senator from Wisconsin had not defended this act as not only the right, but the duty of the commissioners to open these ballots, peep into them, mark them, and mark the men. I say it interferes with the very idea of the ballot, with the purity of elections, and the independence of elections. I go upon the general principle.

Mr. HOWE. The Senator misunderstands what I have been driving at. I have not been trying the administration of these commission ers at all. I understood him to reply to the Senator from Iowa, who said that there was a mark upon these ballots, that that could not be done. The Senator from Iowa stated the fact with a view of showing that the means were at hand, in reply to the Senator from Indiana, of learning how these soldiers voted, and the Senator from Maine said they could not do it. I did not undertake to argue the

propriety of the thing; but I will now say, that when they went no further than to identify the votes given by men whose right to vote they thought was questionable under the law, it was a proper act unless there was a statute which prohibited the doing of it.

Mr. FESSENDEN. There I differ with the Senator. That is the very matter I am disputing. I say that was undertaking to do a thing which they had no right to do; that it interferes with the very idea of the freedom and purity of the ballot box to have ministerial officers undertake to do any such thing. That is where the Senator and I differ.

But I was commenting upon the principle of law which the Senator laid down with so much confidence and elaborated, that a ministerial officer may do anything which is not prohibited.

The

Mr. HOWE. And I stick to it. Mr. FESSENDEN. Undoubtedly. Senator never says anything he does not stick to, right or wrong, I believe, if he has once given an opinion. But his sticking to it, more or less, is not any reason why I should believe his doctrine.

But, sir, I was not arguing whether these ballots were to be thrown out or these votes finally to be counted. I did not undertake to argue that matter at all. I was endeavoring to ascertain for myself what this bill was; and I did not even say whether I might not vote for it; but I wanted to understand distinctly what it was. I agree that this case is a very singular one; but I was trying to learn whether the object of the first section of this bill was not to legalize that very thing in an individual case, and a case that has gone by. That is what I was coming to. The fact having transpired, it appears unquestionably that if these officers had not interfered with the ballot-box, not undertaken to open and mark these votes and mark these men, a certain set of men would have been entitled to their seats on the prima facie evidence, whereas they did undertake to interfere with the ballot box, they did open the ballots, they did mark the ballots, and the consequence is, that they make a return upon which a certificate is issued to a certain other set of men. That is the consequence; and it is that which this first section undertakes to legalize. What I was trying to get at was that the Senate might be in possession of the exact facts, and being in possession of the facts, each Senator can vote, and stick to it, as the Senator from Wisconsin does, according to his own notions.

Mr. FRELINGHUYSEN. Mr. President, I agree with the Senator from Maine, and Í think all of us must, as to the general principle that the ballot must be held secret and sacred. It is a great right, and is not to be invaded. But I do not think this is a case where it is invaded. The law imposed a duty upon these commissioners who received the votes, which was, to receive the ballots of those who were registered. That was one duty. But after that registry was made another law was passed, which was binding upon every officer, upon everybody, that a certain class of persons, some of whom were registered, should not vote-soldiers who had not resided here a

year.

Mr. HENDRICKS. What law does the Senator refer to?

Mr. FRELINGHUYSEN. I refer to the law which was read, passed after the registry and before the voting.

Now, then, the commissioners had two duties to perform: one was the ministerial duty of receiving the ballots; and another was the duty to preserve the purity of the election; that it should be according to law; that illegal votes should not be admitted; and what do they do? They do the only thing, I think, that could have been done. They could not refuse to receive the votes. Therefore, they received them. They were not at liberty to permit a fraud to be perpetrated upon the election; and therefore, inasmuch as these were only nominal and not actual voters, they marked those

ballots. I do not think that was an invasion of the sanctity of the ballot. The commissioners took the only course that could be taken to obey both laws.

As to this bill being retroactive, let me say that it is no objection to a law that it is retroactive, if the thing, when it was done, was honest and fair and just, and the only defect in it was a technical one, because the law had not provided for such a case. It is perfectly legal and proper and competent for Congress now to say that this return of the commissioners of election, being just, shall be the legal evidence, prima facie, of the election of those mentioned in the return. Therefore, I cannot see that the great principle of the secrecy and sanctity of the ballot is by this proceeding invaded, but that, in fact, the only course was taken which could preserve the fairness of that election.

Mr. CORBETT. I always supposed the secret ballot was for the purpose of protecting the voter from the outside pressure that might be about the polls, intended for intimidation. The commissioners or judges of election are the judges of the legality of the votes usually, and I presume were intended to be so in this case. They were to judge who were the legal voters and who were not. I do not see that there was any impropriety in the commissioners of election checking these ballots in the manner which has been stated, when they were satisfied in their own minds that they were illegal votes, or that there was a doubt about them, and when they came to open the ballots and to count them, to declare that there was such a number of soldiers' votes cast, and report that fact and report that they were illegal.

Mr. HENDRICKS. Mr. President. I have a little to say on this bill. The act of January 8, 1867, authorizes:

"Each and every male person, excepting paupers and persons under guardianship, of the age of twentyone years and upward, who has not been convicted of any infamous crime or offense, and excepting persons who may have voluntarily given aid and comfort to the rebels in the late rebeliion, and who shall have been born or naturalized in the United States, and who shall have resided in the said district for the period of one year and three months in the ward or election precinct in which he shall offer to vote." Those are the qualifications. The act specifies that a soldier, a sailor, a marine, and an officer shall have been a resident in fact of the District of Columbia for one year; but if he were such a resident, he was as legal a voter as any other. How is the right to vote to be ascertained? Not by the election board; but the act from which I have read a portion of a section makes provision upon that subject:

"That the mayors and aldermen of the cities of Washington and Georgetown, respectively, on or before the 1st day of March, in each year, shall prepare a list of the persons they judge to be qualified to vote in the several wards of said cities in any election; and said mayors and aldermen shall be in open session to receive evidence of the qualification of persons claiming the right to vote in any election therein, and for correcting said list, on two days in each year, not exceeding five days prior to the annual election for the choice of city officers, giving previous notice of the time and place of each session in some newspaper printed in said District."

The next section provides:

"That on or before the 1st day of March the mayors and aldermen of said cities shall post up a list of voters thus prepared in one or more public places in said cities, respectively, at least ten days prior to said annual election."

The list must be prepared by this board. Having been prepared it shall be exhibited to the people in some public places so that the people may judge of the correctness of the list; and after it has thus been exposed, this board, immediately within five days before the election, shall be in open session for the purpose of correcting the list; so that if any person has been omitted from the list he may come before the board; and so that if any person be improperly upon the list, any other voter may make complaint to the board and have the list corrected. This investigation is somewhat judicial in its character; and when made, and when this list is thus completed, it is conclusive upon all election officers. Whether it be conclusive

upon a court to which the question might go, I need not now discuss; but upon all executive officers it is unquestionably conclusive, and the law so provides expressly, plainly, and distinctly. When these people come to vote, it is thus regulated by the next section :

"That the officers presiding at any election shall keep and use the check list herein required at the polls during the election of all officers, and no vote shall be received unless delivered by the voter in person, and not until the presiding officer has had opportunity to be satisfied of his identity, and shall find his name on the list, and mark it, and ascertain that his vote is single."

Now, what may these executive officers do? Not revise the list, not adjudicate the question whether any mau found upon the list is a legal voter, but they may ascertain his identity. A vote being presented, the board refer to the list. If the man's name is found there, the board may ascertain whether this is the identical person mentioned in that list. Ascertaining that fact, the board must receive his vote, because this is an executive body, not a judicial body, not a revising body.

Now, Mr. President, this whole proceeding was had immediately before the election. The lists were made out. They were exhibited in public places in this city. Any person whose name was not found upon the list had an opportunity within five days before the elec tion, when the board was in open session, of going before the board, and if his right to vote was questioned of producing his evidence; the board would hear his evidence; and upon that evidence adjudicate the question whether he was a legal voter. If any voter observed upon these exhibited lists the name of any person who was not a resident of the District and not within the description of a voter contained in the law, that person, for the purpose of correcting, purifying, and purging the lists, could also go before the board, and it would be the duty of the board then to hear the evidence for and against the right of the voter. That evidence being thus heard in open court, if I may so express it, the adjudication is had; the name is put upon the list, or the name is stricken from the list, according to the judg ment. That list then, being thus corrected, being thus conclusive, is handed to executive officers that they may decide who shall vote, not to decide whether a party is a legal voter, for that has been adjudicated according to law, but to decide, in the language of the law, the identity of the party who presents a ballot.

I understand the facts to be, that upon this list were found perhaps one hundred or more soldiers. That list was exhibited; known to the people; the adjudication had; and what did that adjudication settle? It settled that those soldiers were citizens of the District of Columbia, having bona fide residences in the District, and entitled to vote; and when that judgment was made by the board of registra tion I deny that the election board had any right to inquire whether these men were legal

voters.

But, sir, what did this board do? They received the votes. They marked the ballots. I will not rediscuss the question of the propriety or impropriety, the decency or indecency of marking the citizen's vote or the soldier's vote. I deny the right, and I simply now enter my protest against the right of any officer to mark and mar any man's ballot when the law authorizes him to vote by ballot. But the votes were received. The identity having been established to the satisfaction of the board of election the votes were received, counted, the result declared under the law, and that certi fied by the board of election and handed to the proper officers in the District of Columbia.

When that was completed the board was functus officio. It had no more work to do. As executive officers they had received the hallots, they had counted the ballots, they had declared the result, they had certified that result to the board of aldermen and board of common council in the city, and to the register; and, after that certificate had been thus given, that board had no more power over the

result than any other citizen of the District of Columbia. Why, sir, if they could do it the next day they could do it the next month. As soon as the paper is signed, and by them delivered to the proper officer in the District of Columbia, their work is done. Are Senators prepared to say that after an election board have counted the votes, have declared the result, have certified that result to the three proper departments of the government of the District of Columbia, they may uullify it?

I ask Senators if under the law, as read by the Senator from Iowa, the return of the officers of the election board is not the title of a man to the office? After his title has been established by that return that board, having gone out of office in respect to that particular election, being functus officio, has no more power to disturb that return than a man has to mutilate and destroy his deed after it has been delivered. That return is the evidence of right to the man elected to his office. You might as well mar and mutilate the deed that secures to a man his land as to destroy the evidence upon which rests his title to public office. It is impossible that the thing shall be done as is proposed in this bill. According to law these returns were made. According to law these returns were the evidence of the right to the office; and after that right is vested, fixed, and established according to law, Congress cannot take that office from the man. Congress may abolish the office, but being elected to it, according to all the decisions, he has a right in his office, a right that Congress cannot take from him, except that that office itself, for public considerations, may be abolished.

Then I ask, Senators, when this law which the Senator from Iowa read, passed in January, 1867, defines the qualification of the voters; when the law says that there shall be a board to decide in advance who is a legal voter; when the law says that the list made up by them shall be made public so that the people may examine it, and have it corrected; when the law provides that that board of registration shall hold an open session immediately before the election, and that board holds that session, and the right of the people to vote is fixed by the board, where may that be reviewed? Not by an executive officer. I do not question that for fraud or for palpably wrong decision it may be corrected in the courts. That question is not now before us; but that it can be corrected by an executive board authorized simply to receive the ballots, identify the voters, count the ballots, and declare the result-that that board, executive in its character, can review and revise that list is impossible.

Sir, upon what principle are a hundred votesexcluded by this board of election, after the voters have passed the scrutiny that the law has provided, after they have gone before the board of registration and been found, upon inquiry, to be residents of the District of Columbia as required by law? Upon what evidence has that been reversed? I ask Senators, after that board of election received the ballots, after they identified the parties, after they counted those ballots, after they certified the result to the proper officers and departments of the city government, upon what evidence did they reverse the decision of the board of registration? These men stood, according to the finding under the law, as legal voters.

It is said that they were not residents of the District of Columbia? Upon what evidence was that decided? The election board received no evidence. These soldiers' votes were marked, contrary to decency in my judgment. After they had cast their votes, after it had been decided that they should vote, they went from the polls; and in their absence, when they had no hearing, when their evidence could not be received, then it was that their ballots were taken from the box, torn up, if you please; then it was that those votes were stricken out, not upon evidence, not upon inquiry, but by the wholesale. Every man that was known to be a soldier was excluded from his ballot,

because he was a soldier, upon a general presumption that he had not lived in the District of Columbia a year; not as you would inquire as to the right of A, B, and C to vote in the District, but upon the general proposition that the entire company or companies were to be excluded. It is proposed now in this bill to legalize that transaction; in other words, to put men in office who are not elected (for I deny that that election can be called in question as was proposed in this business) for party purposes. It is not to be tolerated in this country that the votes of men, after they have been received, after they have passed all the tests that the law provides, shall be taken from the box and not counted by an executive board. It cannot be endured. The interests of neither party will endure that. It is the right of every man that these votes shall be counted after their legality has been ascertained in the mode prescribed by the law.

Mr. President, the law as it stood at the time of the election and at the time the certificates were given, was that the certificate of the board of election should be the evidence of the election of an alderman; it should be the evidence of the election of a member of the council. That was the evidence provided. This bill proposes that the register's notification shall be the evidence. Why shall that be interposed now? Has not this certificate gone to the register, and has he any evidence beyond the certificate? Has he any evidence beyond the certificate that has gone to the aldermen and to the council? None. He was not at the election. He is not made by law an appellate tribunal to decide whether these soldiers were legal voters. It is now proposed that a new officer, never authorized to review the proceed ings of an election, having no judicial authority, but a register to simply place on file these papers, may review this; that he may set aside the election; that he may give a certificate that the law did not allow him to give at the time the election took place; that he may reverse the evidence upon which men are entitled to their offices. As well may the Legislatures of your States after you, Senators, have been elected and the Secretary of State, under the seal of the State, has evidenced to this body your right to hold your seats, provide that some partisan may issue a certificate that shall be of higher authority, upon which you shall be turned from your positions in this body. Sir, it is not right. This bill is not right.

As to the question who is elected, let it be ascertained judicially. If the law as it now stands does not give to any of the courts the power to make the inquiry, I will vote very cheerfully to give the courts the necessary authority. If there has been fraud in this elcction, let us know it. If it ought not to stand let the court say so, but not a partisan, not a register. Who is the register, and why shall he decide and revise and review? How is he known to us? Upon what principle do we undertake to say that the evidence which made the title to the office good at the time shall be set aside by the decision of the register in this city?

Mr. President, I propose that this bill shall be recommitted to the committee, with instructions to report amendments providing that the person having the evidence of his election to any office as provided by the law in force at the time of the election, shall be entitled to enter upon the discharge of the duties of the office, and to hold the same until his prima facie right thereto may be set aside by judicial proceedings. My proposition is simply this: that as the evidence required by the law established a prima facie right at the time of the election, so it shall stand until judicial proceedings shall set that prima facie right aside and Congress shall not undertake to legislate one man into office and another out. This election has not been satisfactory. That is very well known; but I do not choose here to discuss it. Some facts are within my knowledge that are very offensive, in my judgment, to men who desire honest elections; but I do not understand that

to be a proper inquiry in this body on this bill. I simply take the law as it stands, and I ask that the prima facie right shall be respected until by judicial proceedings it shall be set aside. This bill is offensive in this: that in regard to the mayor the prima facie right is to be respected; in regard to the aldermen, it is to be otherwise. Is that right? Are Senators willing thus to cut the Gordian knot, in the language of the Senator from Massachusetts ?

Mr. HARLAN. The Senator surely does not intend to misrepresent the bill.

Mr. HENDRICKS. No, sir.

Mr. HARLAN. There is nothing of that kind in the bill, if I am capable of comprehending its meaning. The bill does propose that the men who hold these certificates of their election shall enter on the discharge of their duties as aldermen and common councilmen until their right to so hold their offices shall be set aside by the supreme court, providing the very thing the Senator himself has proposed in his proposed instructions to the committee. The bill as it now stands provides that the mayor who is prima facie elected, who has been sworn in according to the previous law, shall remain mayor until his right shall be decided in court, and that the aldermen and councilmen who have the certificates of election shall be permitted to hold those offices until their right shall be set aside.

Mr. HENDRICKS. May I ask the Senator what certificate these men hold?

Mr. HARLAN. A certificate from the register of the city, the officer directed by the law to notify the officers of their elections, as I read some time since from the charter. If the Senator will hand the book I will read it again.

Mr. HENDRICKS. I know all about that. The Senator need not trouble himself to read that for the purpose of informing me.

Mr. HARLAN. He is the only officer that is authorized to certify to an election. The commissioners make a duplicate return, one to the mayor of the city, and one to the register of the city. The law does not direct the mayor to notify the parties elected or to give them any certificate whatever, but directs him to publish in the newspapers the return of the commissioners-nothing more-to make a publication for the knowledge of the public; but the law does direct the register to notify the parties elected of their election; so that the register is the only officer in the city who has the right to issue a certificate of election. He has done so to these aldermen and common councilmen, and this bill provides that they shall hold, as having the evidence, prima facie, of their right to these, offices until that right shall be set aside by the judiciary-the very thing the Senator himself wants.

Mr. HENDRICKS. The law which the Senator has in his hand provides that the board of election shall certify the result of that election, and the register is simply the keeper of that certificate, and when that certificate is filed with him he simply gives notice to the party of what that certificate contains. He is not a judge, he is simply a clerk to inform the party of what has been certified to his office, that the party may enter upon the discharge of the duties of the office, not by virtue of his notice, but by virtue of the certificate which is conclusive evidence upon the question.

Let me call the attention of the Senator to a feature in that law which shows that my construction is clearly right. That law provides that if the vote be the same for the two candidates, then the board shall decide the result by lot. The board must adjudicate how the vote stands, what the vote is, and if the vote is a tie the board is to award the decision by lot, take that mode of ascertaining who is to hold the office. There is no force given to this notice. It is no evidence of title to the office. The evidence of the party's right to his office is in the board of aldermen and the board of councilmen of the city. The election board must return to each of those boards a certificate of the election, and when the alderman

goes to take his seat as a member of the board he does not take it by virtue of the letter of notice from the register. He presents himself and demands to hold his seat by virtue of the certificate that is on file with the board of aldermen.

Mr. WILLIAMS. I should like to ask the Senator a question.

Mr. HENDRICKS. Certainly.
Mr. WILLIAMS.

I ask him if the alderman does not present his notice to the board of which he is a member as evidence of his right to a seat?

Mr. HENDRICKS. By no means. He may read it or not.

Mr. WILLIAMS. What does he carry with him to the board to indicate that he is elected? Does he carry the returns of the election with him?

Mr. HENDRICKS. No, sir.
Mr. WILLIAMS. What does he carry?

Mr. HENDRICKS. The law provides that those returns shall be on file with the board. Mr. HARLAN. Not at all.

Mr. HENDRICKS. Yes, sir; and if the Senator will send me the book I will show it.

Mr. HARLAN. It provides that the returns of the election of mayor shall be made to the boards of common council and aldermen ; but that the returns of the aldermen shall be made to the register.

Mr. HENDRICKS. If the Senator will send me the book I will find it. Here it is:

"Each board shall judge of the legality of the elections, returns,and qualifications of its own members."

Now, I ask Senators if the board is to judge upon the letter or notice that the register may send to a member of that board, if that is the conclusive point upon which they are to be adjudicate? I say, if the Senator

Mr. WILLIAMS. addresses himself to meMr. HENDRICKS. No; I did not specially address the Senator, but I shall be very happy to hear him.

Mr. WILLIAMS. I will answer, if the Senator has no objection, thať prima facie the person having that notice is entitled to his seat just as much as the Senator is entitled to his seat in this Senate when he presents the certificate of his election; but if any person afterward appears to Contest his right to a seat, then the board may proceed to examine the evidence upon which that notice was given. If, however, there is no controversy as to the right of the party having the notice of his election to his seat, he takes his seat by virtue of having that notice in his possession, and that is sufficient evidence for that purpose.

Mr. HENDRICKS. Mr. President, the return is also to be made to the mayor, who is also to make a publication of it. Now, I ask Senators if that proclamation is the evidence of election? Would any Senator think of presenting that in a court of justice as evidence of the election? Suppose the question should arise as to who was elected in a certain ward, alderman or member of the council, would any Senator in maintaining an action before the court undertake to introduce either the notice of the register or the publication of the mayor? Clearly not. It is a mere statement from the original. The certificate of the election by the election board, the men who count the votes and declare the result and certify the result, gives the evidence, and whenever it is contested it must stand upon that.

Now, Mr. President, as I understand the facts, the board of election in the fifth ward, having counted the votes, certified the result of the election. That certificate was placed on file in the proper offices. Afterward, the board undertook to review their own certifi cate, and to ascertain some additional facts which they had no jurisdiction of, which they had no right to consider.

Mr. HARLAN. The Senator will allow me to say that I do not understand that to be the precise state of the facts in their historical order. As I have been informed, they made out one of the copies and sent it to the mayor,

and afterward, in making out the duplicate, in examining the ballots carefully, they made the discovery I before recited, that if these votes were illegal that they supposed were illegal, the effect would be to change the result of the election, and in making out the first and only return to the register of the city, the legal custodian of these documents, they appended to it affidavits setting forth the facts.

Mr. HENDRICKS. I will ask the Senator from Iowa, before he takes his seat, what evidence the election board received in regard to the residence of these soldiers?

Mr. HARLAN. I am unable to answer that. I have not looked into it, and I do not know.

Mr. HENDRICKS. Iunderstand the facts to be that they declared that all the soldiers were not legal voters; that they were all nonresidents of the District of Columbia, and excluded the whole of them upon the list of names which they marked and the ballots which they marked.

Mr. HARLAN. I will ask the Senator what is the evidence of that fact?

Mr. HENDRICKS. That is the statement which I have not seen controverted. It is about the same character of evidence that we have been acting upon in regard to this whole business. There is no very satisfactory evidence to support this bill one way or the other. My proposition is a fair one, that the prima facie right shall prevail until the cases are heard in

Mr. WIILLEY. No, sir.

Mr. DAVIS. Do I understand the honorable Senator to say that the President can remove Mr. Bowen?

Mr. WILLEY. The Senator will understand me to say that Mr. Bowen's term of service has expired. He is not in office now.

Mr. DAVIS. I will ask the honorable Senator whether he is in office or out of office now?

Mr. WILLEY. He is out of office.

Mr. DAVIS. According to the honorable Senator's position, there is no postmaster in the city of Washington. He does not say de jure or de facto. He says that the late postmaster is out of office.

Mr. WILLEY. He is discharging the duties of two offices at the same time.

Mr. DAVIS. Now, Mr. President, where is the difference in principle? It is now a general law of the United States, and has been for many years, that no man who is in office, receiving the pay and emoluments of one office, shall receive the pay and emoluments of another office at the same time. The honorable Senator has recognized that principle repeatedly in the Committee on Claims, and has voted for its application in denying several classes of officers who charged pay or emoluments for a second office from making such charge against the Government. In that he did right. In that he acted in conformity to a general law of Congres that has been in force and effect

excluded. If the tenure-of-office bill be legal and valid in its operation, which I say it is not, but which the honorable Senator from West Virginia says is the fact, that man Bowen is not out of the office of postmaster of this city; he is in it; he is in the performance of its duties; he is in the receipt of its pay and emoluments, and is so entitled to continue until a majority of the Senate shall say that he shall go by confirming another nomination made for the same office by the President of the United States.

There is no difference in principle between the case of Mr. Bowen, such as the honorable Senator from West Virginia sought to draw, and the case of any other officer who is in office receiving the pay and emoluments of one office, and a bill should provide that he should receive the pay and emoluments of another office. I will put this question to the honorable Senator from West Virginia: if there was a collector of customs or of internal revenue or any other officer receiving pay and emoluments, and a proposition was made to give to that officer the pay and emoluments of another office, assigning to him the performance of the duties of another office, would he vote against a proposition withholding from that officer the pay and emoluments of the second office, or would he vote that he should have both? I have no doubt the honorable Senator would vote that he should not have the pay and emoluments of the second office. I know no difference of priuciple or fact be

according to the custom in such cases, and what seems to me at least fair and right, there can be no objection to this proposition.

The PRESIDENT pro tempore. The question is on the motion of the Senator from Indiana, to fecommit the bill to the Committee on the District of Columbia with instructions. The motion was not agreed to, there being on a division-ayes 9, noes 24.

The PRESIDENT pro tempore. The question now recurs on the amendment offered by the Senator from Kentucky, [Mr. DAVIS.]

Mr. DAVIS. I ask for the yeas and nays on that amendment.

The yeas and nays were ordered. Mr. SHERMAN. I should like to hear the amendment read.

The Chief Clerk read the amendment; which was to insert as an additional section:

And be it further enacted, That the mayor of the city of Washington shall not receive the pay or emoluments of any other office.

Mr. WILLEY. Ordinarily I think this is a correct principle when there is a proper case to which it can be applied; but Mr. Bowen is now holding the position of postmaster of this city, not by virtue of a commission. The term of his office has expired. He is doing it for the accommodation of the public. It is not an office of the same character as that to which he has been elected. It is not like the instance mentioned by the Senator from Kentucky of the Secretary of the Interior acting also now as Attorney General. If he shall hold the office any longer of postmaster it will be for the accommodation of the public, and not because he is holding on to the office at his own instance, but simply because the President does not appoint some person in his place. Under these circumstances, if he discharges for the public the duties of that office, and also discharges the duties of the office of Mayor, I cannot see the propriety of depriving him of the compensation of both offices under the circumstances. If the circumstances were dif ferent, of course I should have no objection to the amendment.

Mr. DAVIS. I suppose if Mr. Bowen was nominated to the office of postmaster, that the honorable Senator from West Virginia would vote for the confirmation of the nomination; and I presume that every Senator present would give the same vote. Then he would continue to receive the pay of mayor, and also the pay of postmaster. The honorable Senator from West Virginia assumes the principle that the President cannot displace Mr. Bowen.

one office and is receiving the pay of that office shall receive the pay of another office at the same time. Now, sir, suppose the President of the United States should make another nomination for this office, and the nominee was thrown before the Senate, if he were a Democrat the honorable Senator from West Virginia would vote against him.

Mr. WILLEY. How does the Senator know that?

Mr. DAVIS. Judging from what you always do.

Mr. WILLEY. The Senator knows very well that that is not always the case. If he would extend his recollection no further back than the last twenty-four hours, it would satisfy him that that statement is not justified by the facts.

Mr. DAVIS. The Senator now refers to his vote upon the confirmation of the minister to England.

Mr. WILLEY. I will say further, if the Senator will allow me, that when Mr. Johnson turned out every Republican appointed in West Virginia my colleague and myself agreed to the confirmation in their places of about half Democrats.

Mr. DAVIS. I understand the Senator, then, to assume this position: that when the President of the United States makes a nomination of a Democrat competent to perform the duties of postmaster of this city he will vote for his nomination without regard to his politics.

Mr. WILLEY. The Senator will understand me, that whenever a nomination is made, if it suits me, I will vote for it; if it does not, Í will not.

Mr. DAVIS. Exactly; and the nominee will be sure not to suit the Senator unless he is a Radical. I do not quarrel with him about that, and do not object to the honorable Senator voting for or against the confirmation of any nomination of the President upon any consideration which he deems proper. But I am assuming now what is the fact: that Mr. Bowen is still postmaster of this city, and that he will continue to be the postmaster until the majority of the Senate shall say that he shall not be the postmaster. The general principle is simply this, and it is the only principle involved in the case, that a man shall not be allowed to receive the pay of two offices at the same time. That is the principle, and every man can comprehend it. It is either right or wrong. If it is right in other cases, it is right also in the case of Mr. Bowen. If others have to be excluded, he should be

Mr. Bowen is mayor of this city, prima facie, and probably according to law. At any rate, he is installed into the office; he is receiving the emoluments of that office. He is also postmaster of the city of Washington; and I propose that while he is mayor he shall not receive the pay and emoluments of the office of postmaster or any other office. The proposition is understood by the Senate. If the Senate intends to be inconsistent, and to give a Repub lican Radical favorite the pay of two lucrative offices, as well as their honors, be it so. I cannot do anything myself except submit. The question being taken by yeas and nays, resulted-yeas 7, nays 31; as follows:

YEAS-Messrs. Buckalew, Davis, Doolittle, Hendricks, McCreery, Patterson of Tennessee, and Vickers-7.

NAYS-Messrs. Anthony, Cattell, Chandler, Cole, Conness, Corbett, Cragin, Ferry, Frelinghuysen, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Van Winkle, Wade, Willey. Williams, Wilson, and Yates-31.

ABSENT-Messrs. Bayard, Cameron, Conkling, Dixon, Drake, Edmunds, Fessenden, Fowler, Grimes, Henderson, Johnson, Morton, Norton, Saulsbury, Sprague, and Trumbull-16.

So the amendment was rejected.

Mr. BUCKALEW. I move to amend the first section of the bill by striking out the words "satisfactory evidence," in the fifth line, and inserting the words "regular official returns;" so that the section will read:

That whenever any person has received, or shall hereafter receive, a certificate from the register of the city of Washington, based upon regular official returns furnished by the commissioners of election, notifying him of his election to any elective office of said city, &c.

This amendment raises directly the true point involved in this first section. These commissioners of election were appointed by the judges of the supreme court of the District. Their duties were, under the law, to receive the votes of persons on the registration lists, to count the votes, and to make a report to the mayor of the city, who was to give notice in the newspapers of the result. They were then to make a copy or a duplicate of their return and transmit it to the register. That was done; and it was after their duties under the law were completed, and upon the day following the election; that a part of these commissioners proceeded to make out another paper or another return. In my judgment, they had no more right to make it than a member of the Senate had, because their

duties under the law were performed. What it is proposed to validate by this first section is not a return of the election made by the election commissioners; but it is attempted to supersede that regular and official and legal return by a supplemental paper, which was made out by a part of the commissioners. That fact seems to have been overlooked in the debate.

Now, sir, what I propose is, in drafting a law which shall apply not only to the present election, but to all future elections, the register shall make out his certificate from the official returns made to him by the commissioners of election; whereas, under the bill as it now stands, he is to make that return upon any "satisfactory evidence." The very form of this first section exposes its impropriety. It|| is not proposed that the register shall make certificates upon the official returns filed with him under the law by the election commissioners, but that he may make out his returns upon any "satisfactory evidence" which may be furnished to him by those commissioners, or by any part of them.

Sir, this election was held; and after the votes were counted, on the evening of the day of the election, it was announced that Mr. Given was elected mayor of the city, and that there was a Conservative majority in the common council, and, I believe, a tie in the board of aldermen. After midnight, singularly enough, it was discovered that there was an error in one of the wards, and the commissioners proceeded to correct that error, as it is alleged, by which a majority for Mr. Given was changed into a majority for Mr. Bowen. That was done after the first count, as I understand; and that result was reached, it is alleged, by correcting some error in the night. Whether that was fair or not is not for me to say; for our present purpose we may assume that it was a fair proceeding and that it was an honest correction of an error.

but

ment, and this seceding body in the common council, if Congress does not interpose, will be obliged to do just what was done by a similar interest in the Legislature of Pennsylvania on a signal occasion at the time of the Buckshot war; the seceding members, who set up, under the lead of Mr. STEVENS, a House of their own, were forced to give up their organization and come into the regular body; the dispute came to an end. Just so here; if Congress does not interpose, if by a vote taken here it is shown that Congress will not interpose in behalf of either party to this dispute, this affair will settle itself in twenty-four hours. It was got up, no doubt, with the intention of appealing to Congress and getting some new law by which a partisan advantage should be gained and a decision be made in favor of those who are departing from the laws which regulate the election.

How could they say that any one of them was not entitled to vote? Certainly they could not. Therefore all that this board did was not only a usurpation of power, but it was an outrage upon the electors of the city of Washington that they, without the slightest authority, without any color of law to sanction their proceedings, should strike from the poll the necessary number to count off particular officers from the returns and count in others, and to do this after these very men themselves had certified under the law the result of the election and their duties had come to an end.

It is not for me, sir, to describe the conduct of these commissioners of election; but there is one thing I can do; I can form an opinion of the attitude and position in which I should be placed by voting for this bill which has been sent here in their interest. I should consider myself disgraced by sanctioning any law to patch up a miserable election trick of this kind to enable certain persons in the common council of the city to possess the legal power if they please hereafter to purge the election, or to transfer this dispute to a court of the District to undergo investigation there perhaps for six months or a year, and meantime install the rejected persons in office in the board of common council and enable them to control the patronage of the city of Washington and place their favorites in office, or, at all events, to hold the other branch of the local legislature, the board of aldermen, in check, and control them in taking such action as they are entitled to take under the law of their organization. The ques

One word more and I will leave the subject. Mr. President, as already argued by the Senator from Indiana, under the law the result of the election was to be certified by the commissioners who held it. They did, after counting the votes, go on and certify the result of the election, and the whole of the commissioners acted in that proceeding, and when they had completed it their functions ended. They had no power to do anything more except, possibly, to transmit the papers afterward. They might do that through a messenger. Then, I repeat, a part of the board undertook afterward to hold a judicial investigation of the election, and get up a paper setting aside some part of the vote which had been polled. And here we are by act of Congress to sanction this proceeding, virtually to turn out the men who were regularly reported elected in one of the wards, and to put their opponents in and to organize the board, so that when it comes to the investigation of the qualifications of those rejected voters, there can be|ply provides that the register of the city shall a decision obtained in favor of somebody or of some interest.

Observe there is not the slightest evidence before the Senate, although we are asked to pass this bill, that there was an illegal vote at the election. On the other hand, the presumption is that these were legal votes, although open to question and to investigation, of course, if anybody chooses to raise an inquiry. The presumption is, that the registry was right, that the persons who made the registration, Mr. Bowen himself being one of them, made an honest and proper enumeration of the persons in this city qualified to exercise the elective franchise, and for five days before the election there was the opportunity to revise those lists and to make them perfect and complete and exactly in accordance with this very law which is now appealed to on the subject of soldiers.

I say, then, that every presumption is in favor of the legality of the votes which were received in that ward and which were undeniably upon the registration list. And observe, sir, that under the prior law, before this act of this spring to which allusion is made, one year's residence in this city was required, not of citizens merely but of soldiers also-of all classes. Consequently these registrars, of whom Mr. Bowen was one, must only have registered those persons in the military service who had been residents of the city of Washington for one year before. They did register them, and their names were put up for public inspection, and they remained there after the registration lists were revised. There is, therefore, no reason for the declaration, which is made here with such confidence, that those votes were illegal.

And, sir there is no pretense that the election officers did investigate the question of their right to vote at all. They had no right under the law to do it when the election was held. There is no pretense that they attempted to do it, certainly after the election was over. They entered into no examination; they called no witnesses with reference to these voters. They did not examine the voters themselves.

The PRESIDENT pro tempore. tion is on the amendment of the Senator from Pennsylvania.

Mr. BUCKALEW called for the yeas and nays; and they were ordered.

Mr. BUCKALEW. This amendment sim

make out his certificate upon the official returns made to him by the election officers instead of "satisfactory evidence.'

Mr. WILLIAMS. I wish to make one suggestion to the Senator. I am sure he sees the effect of this amendment, but it defeats the bill. I presume every Senator sees that, because, of course, one board of aldermen will claim that certain returns are not regular, and the other board will claim that they are regular, and it leaves the question just as we find it, and unless we pass the bill as it stands we accomplish nothing.

The question being taken by yeas and nays, resulted-yeas 8, nays 29; as follows;

YEAS-Messrs. Buckalew, Davis, Doolittle, Fowler, Hendricks, McCreery, Patterson of Tennessee, and Vickers-8.

NAYS-Messrs. Anthony, Chandler, Cole, Conness, Corbett, Cragin, Ferry, Harlan, Howard, Howe, Morgan, Morrill of Maine, Morrill of Vermont, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Van Winkle, Wade, Willey, Williams, Wilson, and Yates-29.

ABSENT-Messrs. Bayard, Cameron, Cattell, Conkling, Dixon, Drake, Edmunds, Fessenden, Frelinghuysen, Grimes, Henderson, Johnson, Morton, Norton, Saulsbury, Sprague, and Trumbull-17.

So the amendment was rejected.

Mr. HENDRICKS. In the fourth section, after the word "trial," in the twelfth line, I move to insert the words "and either party may have a trial by jury."

The amendment was rejected.

Mr. HENDRICKS. I move to strike out the following words in the third section, fifth and sixth lines, and the action of said court in relation thereto shall he final." I will state to the Senate that I think the amendment should be adopted. The proceeding contemplated in this section is summary and ought not to be final. It provides for placing the party in office upon the certificate alone, and does not propose to go into the merits of the controversy, if controversy shall exist, and upon that trial, when the case is to be decided exclusively by the certificate given by the register, the finding or decision of the court ought not to be final. I will read the section:

SEC. 3. And be it further enacted, That the supreme